Nada v Georges River Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Nada v Georges River Council [2017] NSWLEC 80
Hearing dates:	21 June 2017
Date of orders:	21 June 2017
Decision date:	21 June 2017
Jurisdiction:	Class 1
Before:	Molesworth AJ
Decision:	See orders at [37]
Catchwords:	COSTS – agreement of applicants to pay respondent’s costs arising from amendment of development application pursuant to s 97B of the Environmental Planning and Assessment Act 1979 – agreement of applicants to pay respondent’s costs arising from re-opening of proceedings – whether applicants should pay costs – whether respondent disentitled from costs due to delay – whether pursuit of agreed costs offends principle of finality – the Court should be able to rely upon assurances of legal practitioners – respondent entitled to costs
Legislation Cited:	Civil Procedure Act 2005, s 56 Environmental Planning and Assessment Act 1979, s 97B Land and Environment Court Act 1979, s 40 Land and Environment Court Rules 2007, r 3.10(2)
Cases Cited:	Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 Fair Work Ombudsman v Valuair Ltd (No 3) [2014] FCA 1182 McCracken v Phoenix Constructions (Queensland) Pty Ltd [2013] FCAFC 87 Nada v Hurstville City Council [2015] NSWLEC 1300 Nada v Georges River Council [2016] NSWLEC 1302
Texts Cited:	N/A
Category:	Costs
Parties:	Emad Nada and Eva Nada (Applicants) Georges River Council (Respondent)
Representation:	Counsel: Mr S Kondilios (solicitor) (Applicants) Ms J Hewitt (solicitor) (Respondent)   Solicitors: Hall & Wilcox (Applicants) HWL Ebsworth (Respondent)
File Number(s):	2016/00167898
Publication restriction:	N/A

EX TEMPORE Judgment

1. In this matter, the hearing commenced with a notice of motion brought by the Respondent Council, Georges River Council, dated 20 April 2017 and a competing notice of motion (cross-claim) brought by the Applicants, Emad Nada and Eva Nada, dated 29 May 2017. In both notices of motion, the respective parties sought orders for costs in relation to proceedings which were heard and determined by Commissioner O’Neill, being Class 1 proceedings involving a childcare centre proposed to be erected at 45 Ogilvy Street, Peakhurst in place of existing structures to be demolished.

2. In the Respondent Council’s notice of motion, the three primary orders sought were:

1. That the Applicants pay the Respondent’s costs of the re-opening of the proceedings pursuant to r 3.7 or the Land and Environment Court Rules 2007;

2. That the Applicants pay the Respondent’s costs thrown away by reason of its amendment of the application on 4 June 2015 pursuant to s 97B of the Environmental Planning and Assessment Act 1979 (‘EPA Act’); and

3. That the Applicants pay the Respondent’s costs of the motion for costs.

3. In the Applicants’ notice of motion, the five primary orders sought were:

1. That the Respondent pays the Applicants’ costs of the application for the re-opening of the proceedings and the hearing following the re-opening application made with the consent of the Respondent;

2. That the Respondent pays the Applicants’ costs thrown away by reason of the amendments to the application of 4 June 2015…